Volume 143 — Arkansas Reports

3 and in refusing a new trial on the ground of surprise. 82 Ark. 381; 19 Cyc. 226. This instruction is also contradictory to the first instruction, causing confusion.

Francis Chancery Court; A. L. Hutchins, Chancellor; A divorced wife is not entitled to dower. She is barred by the decree of divorce. 59 Ark. 441; 64 Id. 518-522; 111 U. S. 523. The lower court erred in its ruling, and appellees should be required to accept the deed and specifically perform the contract.

M. Jackson, Judge; STATEMENT OF FACTS. Appellees brought this suit against appellants to recover possession of a strip of land containing two or three acres. On the 20th day of November, 1902, Chas. C. Coffman received a deed to forty acres of land. On the 10th day of February, 1909, Chas. C. Coffman and Pearl R. Coffman, his wife, received a deed to an adjoining forty acres of land. They resided on this land with their two minor children until Chas. C. Coffman died.

The city of Jonesboro brought this suit in equity against W. S. Montague and his bondsmen for an accounting of funds coming into the hands of Montague while serving as chief of police of the city of Jonesboro, Arkansas, from April 1, 1913, to April 12, 1915. Montague admitted that he was indebted to the city in the sum of $100 for a note received by him at the beginning of his term from his predecessor in office. He denied that he was indebted to the city in any other sum.

Appellant is a drainage district duly organized under the laws of the State of Arkansas for the purpose of reclaiming lands for agricultural purposes by drainage. Cache River runs through Clay County, Arkansas, and its course was straightened by the drainage commissioners and as straightened it was used as the main drainage ditch.

G. Hammock, Chancellor; The cause did-not stand for trial on the day it was heard and decree entered. The case was prematurely heard. Kirby & Castle’s Digest, § 7631; act 290, Acts 1915, § 12; K. & C. Dig., §§ 6111-6112; 126 Ark. 25; 127. Id. 102. 2. Title should not have been invested in appellee Stitt. 39 Ark. 580; 42 Id. 215; 109 Id. 281; Kirby’s Digest, § 2745. There was no evidence that title was in Stitt’s father at the time of his death. 3.

V. Bourland, Chancellor; 1. Appellant has pursued the proper remedy. A committee was appointed to audit appellant’s account. The committee did so and reported to the company. This was an account stated and fixed the liability of the company. 47 Ark. 541; 80 Id. 472. The company was insolvent and had ceased its functions. Equity was the appiate forum. 110 Ark. 39; 17 Ohio 187; 16 Conn. 593; 56 G-a. 191; 101 U. S. 205. 2.

Campbell, Special Judge; There is no evidence to sustain the assessments or the judgment of the circuit court. The assessment against appellant’s farm land (a 32-acre farm tract) is ten times as great as against other lands in the vicinity and his lands are practically worthless. The assessment is arbitrary and unjust. There was really no assessment according to benefits at all, hut the assessment was purely arbitrary, speculative and guesswork.

Tbe act is arbitrary and unreasonable. 116 Ark. 390; 29 Cyc. 1152. The Legislature eau not take away any right or privilege without showing a reason for so doing; A billiard or pool room is not per se a nuisance. 29 Cyc. 1167 ^ 112 111. App. 376; 102 S. W. 291. The act denounces no penalty on a corporation for operating a pool hall, but only imposes a penalty against an individual who violates the statute.

E. Evans, Judge; 1. Appellant was a passenger. 105 Ark. 340; 113 Id. 265. . 2. Under the law the railway company was bound to the .same high degree of care to protect appellant from injury as if he had been on a passenger train, the duty (being modified only by the nature of the train and the necessary difference in the mode of operation. 87 Ark. 109; 83 Id. 22; 76 Id. 520..

• Appeal from Woodruff Circuit Court, Southern District; J. M. Jachson, Judge; The court erred in sustaining the demurrer. The suit was brought under Kirby’s Digest, section 3651. No bond or affidavit was required. The facts stated in the complaint stated a cause of action under the statute. 36 Ark. 518. Appellants are entitled to judgment for double rent from March, 1919. 105 Ark. 128.

• It nowhere appears in the evidence that appellee at any time during the period alleged in the complaint was possessed of a certificate of graduation or license to teach as required by law. Failing this, he can recover nothing. Kirby & Castle’s Digest, § 9574, 9526; 35 Cyc. 1106, 25; L. E. A. 383. 2.

Judge: 1. The county court acted within its jurisdiction in removing appellees. While the removal was for cause, they could have been removed at pleasure, and no appeal could be from the county court’s action. 2. No appeal was in fact perfected from the order removing appellees.

II. Evans, Judge; 1. Appellee Cox was not tbe procuring cause of tbe sale being made, as tbe evidence shows. 88 Ark. 373; 89 Id. 195; 128 Id. 347. 2. Tbe court erred in refusing to instruct a verdict for tbe defendants, as tbe answer shows Cox did nothing to procure the sale. Before one is entitled to a brokerage on commission, he must show by a preponderance of the evidence that be was tbe procuring cause of tbe sale. Cases supra. 1. Tbe evidence does support tbe verdict.

H.aynie, Judge; 1. The undisputed evidence shows that plaintiff is entitled to recover damages in some amount and therefore the verdict is contrary to the evidence. It was shown that the fire came from the railroad train which had just passed. 112 Ark. 298; 119 Id. 147; 77 Id. 436; 76 Id. 134. 2. The court erred in giving instruction No. 5 for defendant.

Haynie, Judge; 1. The administrator of James Thomas Fagan was not a proper party to sne bnt the suit should have been brought by the administrator of Rosie A. Fagan, deceased, as they policy was payable to Rosa A. Fagan if alive or if not living to her legal representative. 2. The court erred as to the amount of recovery and in holding that the sureties were liable. 1.

W. Baldwin was not a competent juror, and the court erred in holding that he was qualified. 102 Ark. 183. This juror had a fixed opinion as to the guilt or innocence of defendant and was incompetent. Baldwin was a competent juryman. 103 Ark. 23; 84 Id. 241; 79 Id. 127. See also 114 Id. 623; 109 Id. 455; 131 Id. 325; 132 Id. 521; 120 Id. 471. Baldwin was a competent juror, and there is no error in the record.

F. McMahan, Chancellor; STATEMENT OE EAOTS. Appellees, who were the plaintiffs below, are directors of Common School District No. 31 in Boone County, Arkansas, and appellants, who are the defendants below, claim to be directors of a special school district created at the regular 1919 session of the General Assembly.

II. Evans, Judge; The court erred in not directing a verdict for defendant.

Ciarle, Judge; STATEMENT OE EAOTS. This is an action of ejectment by appellants wbo were plaintiffs below against appellee who was defendant below to recover possession of thirty acres of land. Appellants claim title by a deed to their ancestor in 1878 and by adverse possession since that time. Appellee denied all the material allegations in the complaint and claimed title to the land under a collector’s tax deed which is exhibited with his answer.

Elliott, Judge; . 1. The court erred in its ruling upon the demurrer and in holding that under act No. 146, Acts 1905, the sale of the timber was in effect a severance of it from the soil and that it became personal property and that specific performance would not lie. Standing timber is a part of the realty and so remains until actually severed from the soil. 14 Ark. 431; 73 Id. 331; 69 Id. 442; .57 Id. 340.

B. Priddy, Judge; This case is based on a written contract signed by both parties and is for damages for breach, and the court erred in holding that the measure was the plaintiff’s incidental expenses and the difference between the market value of the land on the date of the contract and the value on March 17, 1919.

E. Evans, Judge; 1. The court erred in refusing to direct a verdict for defendant.

B. Sorrells, Judge; The act is invalid,, as it interferes with the. jurisdiction of the county court, and the commissioners have included in the plans, etc., four county bridges. Act No. 409, Acts 1919; 130 Ark. 410. The appeal should be dismissed for failure to file the transcript or perfect their appeal within the time prescribed — thirty days — or in any event, not later than 60 days.

S. Dickerson and John McNaughton, trustees,” and did not authorize the commissioner to sell any land not subject to that lien. 2. The land involved in .this suit was not embraced in the mortgage and hot subject to lien of Dickerson & McNaugbton, trustees, and it was clearly an error (clerical) to include the land involved here. “Expressio unius est exclusio alterius.” 2 Wallace, 640-1, is a case similar to this.

Martineau, Chancellor; 1. Appellant Mills is entitled to this island by the statute and by the law of accretion. Kirby’s Digest, § 4918; 53 Ark. 314. 2. He is also entitled to it by seven years adverse possession and payment of taxes, and the decree is against the preponderance of the testimony.

W. Smith, Judge; 1. Plaintiff assumed the risk and was also guilty of contributory negligence. The risk was patent and visible. 88 Ark. 548; II. 243; 101 Id. 197; 104 Id. 489; 118 Id. 304; 134 Id. 491; 56 Id. 232; 9i8 Id. 202; 3 Labatt on Master & Servant (2 Ed.), par. 1174, 1179-1183. 2. The court erred in its instruction to the jury.

H. Evans, Judge; The verdict is excessive under the testimony, and the court erred in giving instruction No. 2 for plaintiff, the effect of which was to increase the verdict. 100 Ark. 356; 103 Id. 558; 69 Id. 402; 89 Id. 558. Nothing should have been allowed for mental pain or suffering. Mere inconvenience or physical suffering even would not justify a recovery for mental pain. 65 Ark. 177.

B. Sorrells, Judge; STATEMENT OF PACTS. A. C. McGahhey sued Harry E. Bovay to recover the sum of $600 claimed to he due him for commissions on the sale of a farm. The parties to the suit were the principal witnesses in the case, and both resided at Stuttgart, Arkansas. According to the testimony of A. C. McGahhey, he met Harry E. Bovay on the streets of Stuttgart, in February, 1918. McGahhey had a deal with a Mr. Broussard for the sale of a tract of land to him.

B. Sorrells, Judge; STATEMENT OE EAOTS. Lev Lindsey was indicted for the crime of the illegal sale of intoxicating liquors. Ben Dalby was the prosecuting witness. According to his testimony, in January and February, 1918, he bought a pint of whiskey in Pine Bluff, Arkansas, from Lev Lindsey at three different times. He gave Lindsey $2 for the first pint and $2.50 each for the other two pints.

Appellee sued appellant to recover on a policy of life insurance for $8,449 issued by appellant to J. L. Allen and payable at his death to his legal representative. Appellant denied liability on the ground that the policy was not in force at the date of Allen’s death because under its terms it had been forfeited for the nonpayment of the premiums during the lifetime of Allen.

M. Jackson, Judge; statement oe eacts. In No. 2411, Alf Banks, Jr., and John Martin were indicted by the grand jury of Phillips County for murder in the first degree.

M. Jackson, Judge; 1. Appellants were discriminated against on account of their color and no colored man sat upon the jury or was summoned to serve. 2. The verdict is plainly against the evidence. 107 Atl. 554. 3. The verdict is defective.

B. Priddy, Judge; 1. The court erred in refusing a continuance. 100 Ark. 301; 140 S. W. 8. Due diligence was shown. 110 Ark. 251; 129 Id. 290. 2. Defendant did not obtain a fair and impartial trial and the court erred in overruling the motion for a new trial and the supplemental motion therefor. There was no sufficient showing made'in the motion for continuance. 94 Ark. 172; 71 Id. 62. No abuse of discretion is shown. 100 Ark. 301; 57 Id. 168; 41 Id. 153.

Appellee admitted that Charles Sea, as a member, was non-financial and did not pay any dues from 1910 until Ms death. The rules and regulations of the order were best evidence and could not be overcome by proof of custom. 81 Ark. 512; 104 Ark. 538; 101 Id. 353. Parol evidence was not admissible. 2. A collecting agent has no authority to waive the conditions in a policy. 129 Ark. 159. The by-laws of the order must be complied with. 135 Ark. 65. 3.

Elliott, Chancellor; 1. Courts of equity will not interfere to decree specific performance except where it would be strictly inequitable to make such a decree. 12 Ark. 421, 551. It is a matter of discretion for the court. 21 Ark. 116; 30 Id. 547; 34 Id. 663, 676. 2. Time was of the essence of the contract, and appellee had notice that the deed was in the bank and that she could get it by paying the $650' in cash. 72 Ark. 359.

<p>Appeal from Craighead Circuit Court, Jonesboro District; R. E. L. Johnson, Judg-e;</p> <p>1. The court erred in its ruling- as to the qualifications of jurors. 70 Ark. 127; 131 Id. 325; 132 Id. 521; 134 Id. 68; 135 Id. 522; 103 Id. 23; 113 Id. 304; 45 Id. 165; 56 Id. 381; 102 Id. 180. '</p> <p>2. The juror, A. J. Glenn, was clearly disqualified. 102 Ark. 180; 66 Id. 63; 72 Id. 158; 85 Id. 72; 120 Id. 204.</p> <p>3. The court erred in refusing to exclude the evidence as to the death of Mrs. Jinks, Annie May Griffith and the child of defendant. 16 C. J. 592, § 1142; 110 N. E. 456; Ann. Cases, 1912 D, 191.</p> <p>4. The court erred in refusing to instruct the jury on the subject of circumstantial evidence.</p> <p>1. J. W. and E. C. Gambill, Metcalf and Jackson were competent jurors. 103 Ark. 21-23; 66 Id. 53; 79 Id. 131; 114 Id. 472; 109 Id. 450 ; 47 Id. 180; 79 Id. 127; 66 Id. 60; 104 Id. 616.</p> <p>2. The court did not err in refusing to set aside the verdict on account of the juror,. Glenn. The court believed Glenn, and its action will not be disturbed. 131 Ark. 404; 133 Id. 16-24; 120 Id. 193; 86 Id. 64; 72 Id. 158.</p> <p>3. Evidence with reference to the deaths of Mrs. Jinks, Annie May Griffith and the child of Sneed, was admissible. 117 Ark. 296; 120 Id. 458-461; lb. 157; 113 Id. 347-352; 110 Id. 226; 130 Id. 355; lb. 462; 72 Id. 586; 84 Id. 119; 81 Id. 25; 75 Id. 427; 2 Id. 229; 130.Id. 363; 87 Id. 17; 16 N. E. 452; 3 S. W. 329; 52 N. W. 7i83; 99 Pa. St. 388; 106 Id. 247; Ann. Cases, 1917 D, 622; 91 N. W. 898; 65 Id. 203; 7 So. 302, 312; 63 Ga, 395; 6 Enc. of Ev. 675. The admissibility of evidence of other crimes is in the sound discretion of the court. 150 U. S. 57, and cases swpra.</p> <p>4. Circumstantial evidence was clearly admissible along with the positive evidence offered. 138 U. S. 353;</p> <p>5. The evidence of Doctor Altman as to conversations between himself and defendant as to insurance upon the life of Annie May Griffith was admissible.</p> <p>6. Appellant is not in position to complain of the evidence with reference to the deaths of Mrs. Jinks, Annie May Griffith and the baby. 75 Mo. App. 204 ; 4 C. J. 720; note <ZB.; 88 Ark. 848 ; 75 Mo. App. 204;-97 Mo. 137; 111 Ark. 569; 123 Id. 318; 100 Id. 154; 67 Id. 57; 132 Id. 518; 79 Id. 455; 20 Id.- 232; 32 Id. 346; 90 Id. 509; 83 Id. 331; 76 Id. 280:</p> <p>7. The evidence is conclusive of Sneed’s guilt and he made no defense.</p> <p>8. There was no error in refusing instruction No. 9, asked by appellant, and No. 12 was not abstract.</p>

The constitution and by-laws of the order were part of the contract. 105 Ark. 140; 81 Id. 512; 98 Id. 538; 104 Id. 538. The representation as to his age was a warranty. 58 Ark. 532. If false they avoid the policy. 121 Ark. 185. 1. > The verdict will not be disturbed when there is circumstantial evidence to support it. 126 Ark. 300. The instructions were most favorable to the appellant. 2.

M. Hooker, Special Judge; 1. Special Act No. 85, Acts 1919, is unconstitutional and the Hudson deed granted under it conveys no interest in the lands to Hudson. If the land was an island, Hudson could have bought it under the general act No. 282, Acts 1917, and it suspends the operation of a general act for the benefit of a special, person or individual if it is an island.

M. Jackson, Judge; 1. The court erred in admitting the testimony offered by the proponents of the will. Kirby’s Digest, § 80.34; 40 Cyc. p. 1294. The will was not executed in accordance with the lex loci rei sitae. Id. 1294; 31 Ark. 180; 64 Atl. 410; 95 Am. Dec. 487; 22 Am. Dec. 321; 15 Atl. 379; 18 S. E. 208; 34 Pac. 358; 10 S. E. 411. The evidence admitted to establish the will was mere hearsay and not primary evidence.

Steel, Judge; 1. There was no error in permitting witness Dan McKinney to testify that appellant had gotten $6.45 from him. Evidence on this point was admitted without objection by appellant, and he can not now complain as he is estopped to complain. 4 C. J. 720, note B. 2. There was no error in admitting the evidence of Minnie Nelson,! Ethel Knight and Mathew Singleton. Due diligence was not shown. 3. There was no error' in the instructions.

M. Barker, Chancellor; 1. The only question is, does the complaint state a cause of action? Our contention is that it does, and that the demurrer should have been overruled. It is not right, or lawful, to have the taxes exceed the benefits. The'act, No. 127, Acts 1919, is unconstitutional and void, and is contrary to public policy.

Francis Chancery Court; A. L. , Hutchins, Chancellor; Under the deed from Terry to Mrs. Taylor a condition precedent was created and appellee only took a life estate in the Casteel place. The condition precedent in the deed was never performed. 18 C. J. 354; 28 Ark. 48; 78 Id. 350. The words “legal heirs” as used in the will is held to mean legal representatives. 5 Words and Phrases, p. 4064. 1.

P. Henderson, Chancellor; 1. The description as to the location of the property in the so-called equitable mortgage is void for uncertainty and it does not attempt to convey after-acquired property. 108 Ark. 162; 71 S. W. 797. 2. The Milling Company by virtue of its several stave contracts had no lien upon the staves by Brown to Smith which it can enforce against Smith. Kirby’s Digest, § 5396.

McMahan, Chancellor; The court’s jurisdiction on constructive service is limited, and it was error to hold that the court had power and jurisdiction to find the value of Oscar Adams’ personal property and fix a lien on his real estate for $400. -The court could not minimize or lessen the effect of our divorce statute (Kirby’s Digest, § 2684); 5 Ark. 608; 126 Id. 164. See also Kirby’s Digest, § § 6254, 6223, 6259.

Shaver, Chancellor; The act creating the district is unconstitutional and void, as it attempts to confer power' on the commissioners to maintain and repair public roads. Const., art. 7, § 28; 89 Ark. 516. It takes jurisdiction from the county court which has exclusive control over public roads. 1.

Martineau, Chancellor; 1. The court erred in restating the accounts of William James Phillips and in disallowing four items thereof; the .attorneys’ fees, printing briefs and the amounts paid for abstracts of title to land. These claims had been duly allowed by the probate court, and the only remedy was by appeal. The allowance by the probate court was a judgment and can not be attacked in a collateral proceeding. 48 Ark. 277; 38 Icl. 471; 35 Id. 205.

Haynie, Judge; 1. Corporations as well as natural persons are liable for tbe wilful torts of an agent acting within the general scope of his employment, without previous express authority or subsequent ratification. 37 S. C. 377; 34 Am. St. 758; 16 S. E. 40; 76 S. C. 217; 56 S. E. 98; 65 S. C. 332; 95 Am. St. 802; 43 S. E. 816; 67 S. C. 419; 46 S. E. 47; 69 S. C. 115; 48 S. E. 97; 77 S. C. 549; 11 L, R. A. (N. S.) 1822; 122 Am. St. 593; 58 S. E. 608.

B. Baker, Judge; 1. The cause of action was removable to the Federal Court. It was a suit at law and removable under the Federal Code. Kirby’s Digest, § 1513; 38 Ark. 150; 196 TJ. S. 239; 169 Id. 517; 232 Fed. 708; 154 U. S. 363. The term “suit” is a very comprehensive one, and applies to any proceeding in a court of justice which the law affords. 2 Peters 449; 141 Fed. 578; 241 Id. 194.

Reeder, Chancellor; STATEMENT OP PACTS. The Walnut Ridge-Alicia Road Improvement District was created by Act No. 426, passed by the General Assembly of the State of Arkansas for the year 1919. See Road Acts of 1919, vol. 2, p. 1752. The general purpose of the act was to improve the public highway from the line between Jackson and Lawrence counties near Alicia to Walnut Ridge in Lawrence County, Arkansas.

Martineau, Chancellor; STATEMENT OF FACTS. This is' an action for divorce by the wife against the husband on the statutory ground of -cruel and barbarous treatment. The husband answered and denied the allegations of the complaint. He filed a cross-complaint in which he asked for a divorce on the ground of adultery. Nell Lockhart, the plaintiff, was a witness for herself. According to her testimony, her husband drew a gun on her three or four times and threatened to kill her.

Shaver, Chancellor; STATEMENT OE EAOTS. Mrs. Helen Howard Williamson brought this suit in equity against Justin Matthews to quiet the title to a certain section of land in Miller County, Arkansas. The land in question was originally internal improvement land. On December 14, 1855, it was sold by the State of Arkansas to S. H. Hempstead and Benjamin P. Jett, who gave their note for the purchase price in the sum of $800.

The alteration of the contract was immaterial and made no change in the legal operation of the instrument, and the court erred in holding that they were material and vitiated the instrument. The alteration must be material. 1 Crawford’s Digest, 99; 115 Ark. 606; 170 S. W. 1011. The words added made no change in the legal operation of the instrument. 2. The contract was not canceled. 188 Fed. 179; 68 S. E. 124; 56 Id. 313.

Elliott, Chancellor; The proof shows that the contract was fully complied with and that the judgment should have been in favor of Contractor Bunn for $5,604, the amount of the engineer’s report to be due him, with interest, as damages caused by the wrongful issuance of the preliminary injunction. The work was performed according to the contract and plans and specifications and was completed and accepted within the specified time. 28 Cyc. 665; 101 111. App. 150.

M.. Jackson, Judge; 1. The verdict is contrary to the evidence, and the peremptory instruction should have been given. 2. The court erred in its oral charge to the jury. 3. The court erred in refusing to instruct the jury that, even though they might find that defendant was agent of his wife, yet, if they should find that she was the owner, then they could not find a verdict for the plaintiff.

Francis Chancery Court; A. L. Hutchins, Chancellor; 1. The land or farm was sufficiently identified and the description definite enough. 88 Ark. 482; 90 Id. 237; 95 Id. 255. 2. The letter of September 28th was not a rejection of the offer of sale, and appellee was bound to specific performance. 13 C. J. 296. The minds of the parties here never met. The letter of Blount to Roleson was not a definite offer.

R. Ra/ynie, Judge on exchange; 1. While no particular day was named by which time the contract was to be wound up, the evidence shows that it was to be done without delay. If there. was a breach of the first contract by Dennis writing Parker that he had decided not to take $10,000, then a cause of action accrued. 98 Ark. 60; 78 Id. 356. If such a breach did occur, it was waived by entering into a new contract. 9 Ark. 488. 2.

The evidence of conversations had with Porter Brown in the absence of appellant prior to the burning of the houses was inadmissible and it was error to admit them. It was mere hearsay and not competent. 95 Ark. 460; 87 Id. 34. 2. Conversations with Porter Brown after the fire in the absence of appellant were also incompetent, and it was error to admit testimony as to them. 78 Ark. 290; 45 Id. 155, 328; 62 Id. 516; 59 Id. 422; 45 Id. 132. 3.

Francis Chancery Court; A. L. Hutchins, Chancellor; 1. The court erred in finding that the 1914 account between Foster and Bradney had been settled, as there is no evidence to sustain the finding. Bradney admits in his pleadings that he was indebted to plaintiff $1,800.23 on the 1914 account, and it was error to refuse to give plaintiff judgment therefor. 2.

Elliott, Chancellor; Plaintiff was not an innocent purchaser. Defendants were in actual possession and plaintiff knew it and saw the improvements defendants had made and saw them living in the houses on the land and inquiry would have disclosed their title. Actual possession under an unrecorded deed is notice. 90 Ark. 149; 54 Id. 281; 96 Id. 512, 520; 101 Id. 163. 1.

Clark, Judge; 1. Kirby & Castle’s Digest, § 9151, gave appellees the right to contract with appellant for the hire of road implements or outfits, as well as the right to purchase same; the doctrine of ultra vires can not be raised, and if the specific power was not granted to purchase or hire, appellees impliedly were granted power to make the contract. The demurrer admits the facts pleaded. K. & C. Dig, §§ 1914, 1916; 61 Ark. 397; 47 Id. 269.

H. Dudley, Judge; The assessment of benefits was arbitrary, -unjust, discriminatory and unlawful. The zone system was adopted and no attention was paid to improvements on the lands in rural districts, but in cities and towns betterments were considered. 130 Ark. 70; 127 Id. 310.

H. Dudley, Judge; 1. Appellee was a public ginner and liable on its bond. Acts 1917, vol. 2, p. 1401. It failed to take true samples of tbe cotton ginned. It was error to instruct a verdict for defendant, as a case for a jury was made. Disobedience of a statute constitutes actionable negligence. 22 N. E. 20; 9 L. R. A. (N. S.) 338 and note; 5 Id. 186 and note; 38 Cyc. 418. It was tbe duty of appellee to properly pack tbe cotton and take true samples.

The answer did not raise the issue of assumed risk and the court erred in submitting that issue to the jury. 98 Ark. 211. 2. The court erred in giving instruction No. 3 to the jury. 77 Ark. 398; 68 Id. 1; 72 Id. 1; Thompson on Negl., § 303; 88 Pac. 35; 29 Cyc. 522-3; Kirby & Castle’s Digest, § 5484. 1. The court correctly instructed the jury and there is no error. 98 Ark. 211; 77 Id. 367; 83 Id. 576; 86 Id. 507; 88 Id. 243. 2.

P. Henderson, Chancellor; 1. The court erred in holding that the judgments and other proceedings referred to hy cousel in his answer shows an adjudication of the relief asked in our complaint; in other words, erred in sustaining the plea of res judicata hy the insurance company. The proceedings previously had proves that there was no good insurance on the property, and nothing has ever been paid for the loss.

B. Priddy, Judge; 1. The court erred in failing to require the State to elect upon which count in the indictment the defendant should be tried, as defendant in one count was charged as the principal and as accessory in the other. 135 Ark. 334; Kirby’s Digest, §§ 1560-2; 84 Ark. 608. 2. The court erred in giving instruction No. 4. 55 Ark. 593; 83 Id. 227. Also in refusing Nos. 1 and- 2, asked by defendant. Also in refusing No. 4. Supra. 3.

M. Jackson, Judge; 1. Parties have the right to make their own contract and this court will not make one for them, but only enforce the contract as made by the parties. 92 Ark. 283; 65 Id. 295. The insured is bound by the contract as written. 122 Id. 219-223. 2. The policy was not in force for any purpose until actually issued and only takes effect from the date of its issue. 122 Ark. 179. An agent has no power to change the conditions in contracts or waive forfeitures.

This cause should be reversed because the plaintiff was forced to try the-case on an improper theory. The counsel for defendants took the position that there could be no recovery against any one of defendants unless the recovery was against all the defendants.

V. Bourlcmd, Chancellor; STATEMENT OF FACTS. This is an independent suit for alimony brought by the wife against the husband. She also asks for the custody of their daughter, nearly fourteen years of age. The court granted her the custody of their infant daughter and also awarded her alimony in the sum of $25 monthly to continue for four months from the date of the decree. The husband has appealed. 1.

This is an appeal by defendants from a judgment of the circuit court against them in plaintiff’s favor in an action brought to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. At the time the plaintiff, R. A. Mayberry, received his injuries he was in the employ of the defendants, J. M. Jones and A. B. Dunn, partners under the firm name of Jones & Dunn. He was injured while running an edger machine at the mill of the defendants.

The evidence was not legally sufficient to send the case to a jury, and the court should, as matter of law under the undisputed facts, directed a verdict for defendant, as defendant was not liable in damages for the arrest. The court erred in refusing the instructions asked by defendant. The common law still prevails here, and a peace officer may arrest without a warrant one who commits a breach of the peace in his presence. 11 R. C. L. 800-801; 62 Ohio St. 500; 78 Am.

M. Jachson, Judge; 1. The verdict is contrary to the law and the evidence. The facts proved are insufficient to support a causal connection between the alleged negligence of appellant and the damage to appellee’s property. The fact that cinders and sparks were emitted from the smokestack some time in the past is not sufficient foundation upon which the jury could presume that such was the .case on this particular occasion. These facts were too remote. 2.

B. Priddy, Judge; 1. It was error to refuse the peremptory instruction asked by defendant. There was no testimony except the prosecutrix’s and she' was not corroborated either as to the intercourse or promise of marriage. 130 Ark. 149; 11 Enc. of Ev. 699; 67 Ind. 567-573; 40 Ark. 485; 77 Id. 472; 72 Id. 23; 84 Id. 67; 86 Id. 30; 92 Id. 424; 77 Id. 16; 126 Id. 98; Smedley v. State, 130 Ark. 149; 102 Pa.

Steel, Judge; 1. The court erred in not directing a verdict for plaintiff, for defendant admits tbat part of tbe goods were of equal quality of the samples shown him, but he failed to show how many and the value or price thereof. The burden was on defendant to show the number of items and the price of each item, and he has failed.

Steel, Judge; 1. The evidence is sufficient to sustain the conviction. This court will not reverse where there is any substantial evidence upon which to base the verdict of the jury. 2.

M. Jachsow, Judge; The evidence makes out a, case on the question of negligence sufficient to go to the jury, and it was error to direct a verdict for defendant. 103 Ark. 509; 102 Id. 562; 127 Id. 243. There is no question but that there was sufficient evidence to take the case to a jury.

The court erred in refusing to grant a change of venue and abused its discretion in so doing. The supporting affidavits are in due form, stated the necessary-facts and that due diligence had been used, and hence the court abused its discretion in refusing the motion. 68 Ark. 466, 60 S. W. 31; 90 Ark. 139,135 S. W. 821. The ruling of the court was arbitrary. 2. The verdict is contrary to the evidence.

Coleman, Judge; The contract is plain, definite and unambiguous. It was not a tenancy from year to year but for a definite term and not at will, and the six months’ notice required was not given. 65 Ark. 471. The contract was in effect for a lease at will or from year to year and was terminated by proper notice given before this action brought. 16 R. C. L. 606; 34 L. R. A. (N. S.) 1069; 5 Elliott on Cont., par. 4531, 4580. See also 22 Ind. 122; 98 Mass. 503; 5 Bin. (Pa.) 228.

B. Sorrells, Judge; 1. The offer of Odell & Kleiner did not contain any promise to pay the court costs and attorney’s fees in addition to the $1,400. . The telegram did not expressly nor impliedly show any such promise. The costs and fees were liens under the decree, and there could be no satisfaction of the decree until these liens are discharged. Kirby & Castle’s Digest, §■§ 463, 5187, 5189; 135 Ark. 22.

Steel, Judge; 1. The indictment is not sufficient; it is fatally defective, because it omits the words “with intent to.embezzle or convert to his own use.” Kirby’s Digest, §§ 1830, 1837; 58 Ark. 98, 105; 111 Id. 180, 186; 118 Id. 44. 2. Jones and Keith were partners as a matter of law. 74 Ark. 437; 145 U. S. 61; 63 Ark. 518. 3. There is a fatal variance between the indictment and the proof. Ill Ark. 186; 71 Id. 418. 4.

Martineau, Chancellor; 1. The chancellor should have granted the motion to transfer to the circuit court. Chancery had no jurisdiction. The suit was for compensation for services rendered and damages for breach of contract and plaintiffs had no lien on the funds from the bond sale. 38 Ark. 397; 109 Id. 171; 120 Id. 389; 47 Id. 86. Nothing was recovered in the suit and the attorney had no lien. 65 Ark. 84; 56 Id. 306; 64 Id. 438. Plaintiffs had an adequate remedy at law. 2.

F. Kirsch, Special Judge; 1. The lease to Mauldin was void, hut even if void the relation of landlord and tenant did exist and this suit in unlawful detainer was properly brought. 11 Cyc. 469; 18 L. R. A. 447; 7 Id. 160. Kirby & Castle’s Digest, §§ 5659-61, expressly limits the power of the county judge to five years in leasing school lands, etc. Ill Ark. 329 is decisive of this case. 2.

The proof on behalf of appellants is practically uncontradicted of a warranty and failure and that the sale was induced by through false and fraudulent representations. Instruction No. 2 given was error and 'does not state the law. 135 S. W. 438; see also 11 Ark. 58; 38 Id. 339; 60 Id. 387. 2.

H. Dudley, Judge; 1. This is a collateral attack on a judgment of a superior court of record which on its face shows all jurisdictional facts' and can not be set aside on collateral attack. 15 Cyc. 320, 387; 23 Id. 1061; 51 Ark. 340; 11 Id. 552. 2.. The pleadings and evidence resolves this action into an election contest of which the circuit court was wholly without jurisdiction to try and its findings and judgment were void. 15 Cyc. 403; 61 Ark. 251-252-3. 3.

The court erred in admitting- the testimony of Doctor Higdon, as it was based in part upon plaintiff’s statements to him. 206 Fed. 765; 45 Me. 392; 27 Kan. 463; 76 Wis. 35; 44 N. W. 1092; 132 Mass. 439; 65 Ohio St. 403; 62 N. E. 1047; 68 N. W. 148; 234 111. 564; 194 Fed. 393; Lawson on Expert & Op. Evidence, 162; 136 Ark. 246; 208 111. App. 67; 198 S. W. 396; 160 N. W. 372; 148 Pac. 764; 95 Kan. 343; 206 S. W. 677. 2. The court erred in its instructions, especially No. 2.

McMahan, Chancellor; 1. Neither the original nor amended complaint stated a cause of action within the jurisdiction of the chancery court as a vendor of personal property has no lien thereon for the purchase money. 104 Ark. 130. 2. The court overruled the motion to strike. It is error to permit an amendment which changes or sets forth a separate and distinct cause of action from that alleged in the original complaint. 102 Ark. 20; 85 Id. 246. 3.

Coleman, Judge; 1. Instruction No. i, asked by defendant, should have been given. 66 Ark. '¿ t l; 36 Id. 463; 95 Id. 345-349. 2. Instruction 3 should have been given also, and instruction No. 2 given for defendant was error. The instructions are conflicting and contradictory.

Appellant was not liable under the law, as the evidence fully shows. 79 Ark. 357. 2. The appeal was in time. 38 Ark. 216. 1. The bill of exceptions was not settled and filed within the time prescribed by law. 95 Ark. 331. 2. The evidence sustains the verdict, and there is no error in the instructions. 103 Ark. 4; 102 Id. 200.

The loan here was made pursuant to act 169, Acts 1911, page 141. The facts alleged show an obvious violation of appellant’s rights, for which the judgment should be reversed.

Appellants were mere sureties for Belongy on the note. Parol evidence was admissible to show that fact. 92 Ark. 604; 54 Id. 97; 8 Cyc. 262 K. 2. Appellee having accepted interest which was not due, and thus extended the time of payment the sureties were released. No place of payment having been specified in the note, each of the parties were entitled to presentment for payment when due, and the note not having been presented for payment, the sureties were released.

The court had no jurisdiction, as the justice of the peace had none. 44 Ark. 377; 77 Id. 234; 83 Id. 372; 10 Id. 326; 1 Id. 252; 114 Id. 304. 2. The suit was barred by limitation, which was pleaded. 12 L. R. A. (N. S.) 1191; 22 Id. 1110; 51 Id. 151; 92 Ark. Ill; 107 Id. 106. 3. The corporation could not sue, as it could not accept payment and then declare a forfeiture and afterward sue. 1 Cook on Corp. (6 ed.), §§ 121-125-6; 108 U. S. 436. 4.

B. Sorrells, Judge; The court erred in sustaining the demurrer on the ground that the damages to the rice crop were too remote and speculative. The damages sought were special rather than general and were recoverable. 72 Ark. 275. They were not remote and speculative. 17 C. J. 715-716. This case is ruled by 136 Ark. 231. See, also, 24 R. C. L. 77; 35 Cyc. 643. 1. The court had no jurisdiction to render a judgment in personam.

W. Smith, Judge; STATEMENT OP PACTS. Reed Couch sued the Southern Express Company to recover damag-es for its negligent delay in delivering to him a trunk containing his wearing apparel and watchmaking tools which he had delivered to said company for shipment from Magnolia, Arkansas, to Kansas City, Missouri.

M. Jaelcson, Judge; The court erred in its instructions, and especially in its peremptory instruction as to Warren, as the jury should have been allowed to pass on the question as to whether Doyle sold the horse to Morton and thus voluntarily parted with his title, or whether he reserved the title in himself.

Martineau, Chancellor; statement of facts. John M. Moore, W. B. Smith, and J. Merrick Moore, brought this suit in equity against the Union & Mercantile Trust Company for the specific performance of a written contract whereby the plaintiffs agreed to. convey to the defendant certain property in the city of Little Bock for the sum of $150,000 cash.

Haynie, Judge; STATEMENT 0E EAOTS. George Brown was indicted, tried before a jury, and convicted of the crime of robbery. The facts as shown by the State briefly stated are as follows: Ben Baker lived in Nevada County, Arkansas, about eleven and a half miles from Hope, Arkansas. He is ¡a single man and his aged mother lives with him, and they lived there on November 23,1919.

W. Hendrichs, Judge; STATEMENT OE EAOTS. Edward A. Haid filed a petition for mandamus against Joe Ferguson, as Treasurer of the State of Arkansas, to compel him to pay a warrant which the Auditor of the State had drawn in favor of Haid after allowance by the Arkansas Corporation Commission to reimburse him for traveling expenses in going to and from Washington, for the purpose of arguing before the Interstate Commerce Commission, a rate case pending before that body in which…

The excuse of sickness of his only attorney and the delay of an hour or two on account thereof, was a good and legal one, and the court abused its discretion in refusing to reinstate the appeal. Due diligence was shown. 59 Ark. 162; 85 Id. 385 ■ 128 Id. 269; 80 Id. 510. The record sustains the findings of the court in refusing the motion to reinstate the appeal. No abuse of discretion is shown.

H. Evcms, Judge; The court erred in taking the case from the jury and in holding that the evidence fails to connect Lockrie and Holcomb with the fraud perpetrated. This class of trading is fraudulent and appellees were liable. Appellant had the right to rely upon the truthfulness of the representations made by appellees, and did rely upon them, and was injured. 84 S. W. 1048; 55 Ark. 299; 47 Icl. 335.

B. Priddy, Judge; The court erroneously arrived at its conclusion in this case, and the nunc pro tunc judgment should be entered showing all necessary jurisdictional facts, as shown by the evidence in the cause.

The judgment sought to be annulled was obtained by fraud of appellees in failing to give appellant notice that an appeal had been taken to the circuit court, as required by Kirby’s Digest, § 4679. Const., art. 2, § 21; Kirby’s Digest, § 4424; 49 Ark. 397; 48 Id. 334; 45 Id. 271; 58 Id. 181; Kirby & Castle’s Digest, 5393-5406; 33 Ark. 778. Notice must be given of an appeal in writing. Kirby’s Digest, § 6267. 2.

Court; J. M. Jackson, Judge; 1. The evidence was insufficient to support a conviction of embezzlement. 2. The court erred in refusing to allow appellant to show by the witness, Hollingsworth, that certain orders had been issued by the secretary of the lodg’e upon appellant as treasurer and had been paid by him and which did not show upon the record books.

M. Jachson, Judge; 1. Appellant leased the land for 1919 on the same terms that he had occupied the premises for six years, and under the evidence appellant had the right to the farm for the year 1919. 2. Appellant did not forfeit his right to remain on the farm by reason of failing to pay rent, as he paid it as agreed, and owed appellee nothing. 3.

Clark, Judge; 1. The judgment should be reversed, because— (1) There is no evidence to sustain it. (2) The court erred in refusing to give instruction No. 3 for defendants. (3) The court erred in its general charge to the jury and in giving instructions Nos. 1, 2 and 3 for plaintiffs. (4) Because the court erred in permitting Grover C., O. E. and W. R. Hicks and T. J. Cullar to give certain testimony.

> Appeal from Columbia Chancery Court; John T. Sifford, Special Chancellor; 1. The demurrer admits all the allegations of the complaint. 90 Ark. 158; 102 Id.. 380; 94 Id. 453, 504. The complaint was good. 33 Ark. 633; 32 Id. 478; 67 Id. 413; 30 Id. 102. 2.

<p>Larceny — evidence as to intent.- — In a prosecution for larceny of a baseball mitt, a fielder’s glove and a baseball, where it appeared that defendant had been accustomed to play ball with the owners of the article taken, and that he reached in through an open window at noon and took the above articles from a table with the purpose, as he contended, of playing with them and -then returning them to the owner, it was error to refuse to permit defendant to testify that there were other mitts and a ball lying on the table at the time of the alleged theft; such evidence being competent to show defendant’s intent.</p>

B. Priddy, Judge; The testimony is undisputed that the funds invested in this cotton belonged to the estate of E. A. Darr, and the cotton was assessed against the estate, and it would be double taxation to tax the cotton and the money drawn from the bank. 73 Ark. 515. The assessment of the cotton was in no respect double taxation. The assessor could not be justified in placing this cotton on the personal property list owned by the Darr estate.

L. Hutch-ins, Chancellor; 1. The burden of proof was on appellee and no fraud is proved. If appellee is entitled to any relief at all, it is not reformation hut a rescission of the contract for a mutual mistake as to the location of the improvements and the boundaries of the tract of land. There was a clerical error in describing the lands to he reserved by appellee. Appellants had no knowledge or information as to the boundaries or corners of the tract claimed by appellee.

The court erred in not sustaining the demurrer to the indictment, as the place is not sufficiently described. 101 Ark. 1; 118 Id. 360; 114 Id. 310; 68 Id. 251; 111 Id. 180-214. 2. The court erred in admitting the testimony of witnesses Calvert, Wade, G-ell and Ruth Wade, as to the age of Bessie Self. 1 Abbott, Trial Ev. (3 ed.), 271-75; 6 Conn. 9-13; 193 Mo. App. 619; 187 S. W. 137. 3. The court should have directed a verdict for defendant.

W. Smith, Judge; STATEMENT OE PACTS. Lee Sykes Royal brought this suit against Mosaic Templars of America to recover upon a benefit certificate issued to John Henry Royal in the sum of $300 in which she is named as the beneficiary. ' On the 30th day of August, 1913, the Mosaic Templars of America issued to John Henry Royal a life insurance policy for $300.

<p>Appeal from White Circuit Court; J. M. Jackson¡ Judge;</p> <p>STATEMENT OE FACTS.</p> <p>On the 20th day of June, 1919, Clifton Bolton, by Robert Bolton, his father and next friend, sued Walker D. Hines, Director General, Missouri Pacific Railroad Company, successor of B. F. Bush, Receiver St. Louis, Iron Mountain & Southern Railroad Company, for damages for personal injuries received by him.</p> <p>He alleges that he was injured on the 6th day of July, 1916, while in the employment of the defendant and that at the time he was injured he was returning from work and that his injury was caused by the negligence of the defendant’s brakeman in shoving him off of one of the defendant’s trains while it was running at a high rate of speed.</p> <p>A demurrer was sustained to the complaint and the plaintiff filed an amended complaint in which Walker D. Hines, Director General of Railroads, was made a defendant.</p> <p>The court sustained a demurrer to the plaintiff’s amended complaint. The plaintiff elected not to plead further. Thereupon the court dismissed his amended complaint, and from the judgment rendered the plaintiff has appealed.</p> <p>1. The complaint states a meritorious cause of action. The suit was filed in due season and time on the relations arising either ex delicto or ex contractu. There is no legal ground for this demurrer whatever. 125 Ark. 77-85; 87 Id. 70. The statute of limitations does not apply.</p> <p>2., The law of the case is stated in 23 R. C. L., par. 55. A corporation is liable after the discharge of the receiver and the restoration of the property to the owner or purchaser of same. Ib. A meritorious cause of action was stated and the demurrer should be overruled and the cause heard on the pleadings and evidence before a jury. 164 IT. S. 636; 29 Am. St. 675; 31 Id. 374; 18 L. R. A. 60; 23 R. C. L., par. 123.</p> <p>1. There was no proper service on the railroad company or the Director General, Hines.</p> <p>2. The cases .cited by appellant fail to sustain his contention. The property was sold and purchased and not turned back to the same company. 18 Am. St. 60; 69 Id. 206; 22 Id. 56. This case is governed by 134 Ark. 366; 74 Id. 368; 1 Elliott on Railroads, § 526; 33 Cyc. 338; 136 Ark. 193. Hines as Director General was not the successor of Bush, Receiver. 134 Ark. 366. The demurrer was properly sustained. 'Cases supra.</p>

The proper rule in determining whether a medical compound may be considered intoxicating is correctly stated in 4 Am. Law Eep. Anno., p. 1155. The court erred in permitting the State to prove that the medical compound contained 15 per cent, alcohol by volume and 12 per cent, by weight. The court should have sustained the demurrer to the evidence. There was no competent proof that the compound was other than a medicinal preparation. There was no proof of a sale. 2.

M. Barker, Chancellor; STATEMENT OF FACTS. Appellants, W. H. Henry and his wife, brought this suit on July 16, 1918, against the widow and heirs of J. T. Henry, and alleged that a deed executed by the plaintiffs on February 14, 1912, to J. T. Henry for a recited consideration of $9,100 was intended simply to secure the payment of that sum of money, and was not intended as an absolute conveyance.

W. Smith, Judge; 1. The first instruction for 'plaintiff was error. Instruction No. 2 was also error. 208 S. W. 289; 130 Ark. 406. 2. The court also erred in refusing to modify instruction No. 3, for plaintiff. Supra. 3. The court erred in giving No. 5 for the plaintiff, which practically takes the case from the jury. Supra. 1. There is no error in the instructions complained of. The law is well settled.

To constitute seduction two things must occur. (1) There must be a promise of marriage previously made or the existence of a feigned or pretended marriage between the female and the defendant; (2) there must be carnal knowledge obtained solely by reason of the promise of marriage or the feigned marriage. Kirby’s Digest, § 2043. The evidence is not sufficient to show this.

The cost of the improvements will exceed 20 per cent, of the value of the property within the territory annexed, and the notices given to property owners were insufficient. Art. 19, § 27, 'Const.; Kirby & Castle’s Digest, § 6925: The proceedings were had under act No. 246, Acts 1909, §§ 1-2. The act was strictly followed and all acts were legal. 125 Ark. 57; Kirby & Castle’s Digest, § 6847.